Charlton v. Superior Court

Opinion

Petitioner Randall Charlton was convicted of first degree murder in 1974. Thereafter Charlton petitioned for a writ of habeas corpus, contending that his trial counsel was incompetent. In November 1978, the California Supreme Court issued an order to show cause, returnable before the San Francisco County Superior Court to inquire into the validity of petitioner’s contention. At the hearing to set the order to show cause for hearing and to appoint counsel, Michael Korn, the attorney who had filed the habeas corpus petition, advised the court that petitioner was indigent and that he, Korn, was willing to represent petitioner by appointment by the court in view of petitioner’s desire to have continuity of representation. After determining that the public defender had not appeared in the case or otherwise disqualified himself, the court stated that it was limited to the appointment of the public defender. The public defender was in fact appointed. Charlton petitioned this court, requesting that we mandate the superior court to appoint private counsel Korn. We denied the petition without comment. The Supreme Court without comment directed that we issue the alternative writ.

We do not agree that the Supreme Court’s direction has the effect urged by petitioner. Had this court issued the alternative writ in the first instance, petitioner’s argument would necessarily fail. The Supreme Court’s direction that we issue the alternative writ, after our denial, is an expression on the part of the Supreme Court that we examine the contentions raised by petitioner and write an opinion evaluating those contentions. To accept petitioner’s rationale would obviate the necessity of any more than a pro forma opinion by this court, reducing our function to that of remanding the cause to the superior court with directions that it exercise discretion as to whether to appoint private counsel or the public defender. This the Supreme Court could have done, had it so intended, by the issuance of a peremptory writ, without directing this court to issue its alternative writ. In the cases cited in support of petitioner’s contention, the Supreme Court’s direction to issue the alternative writ did not have the effect of disposing of the issue raised by the petitioner, as would be the case here if we accepted petitioner’s rationale. We decline to follow the holding of Atlantic Richfield where to do so decides the cause. We note that the Atlantic Richfield court has itself departed from its broad ruling, concluding in Krueger v. Superior Court (1979) 89 Cal.App.3d 934 [ 152 Cal.Rptr. 870 ] (hg. den.), that a grant of hearing and retransfer did not cure fatal defects even in the form of the petition.

Although the statutory implementation of the indigent defendant’s right to appointed counsel is in sections addressing the subject in the context of a criminal trial, not habeas corpus proceedings (see Pen. Code, §§ 859, 987), it is clear that an indigent criminal defendant prosecuting a habeas corpus petition to the stage reached here is entitled to appointed counsel. (See People v. Barton (1978) 21 Cal.3d 513 , 519, fn. 3 [ 146 Cal.Rptr. 727 , 579 P.2d 1043 ].) Penal Code section 987.2 conditions the power to compensate private counsel on the unavailability of the public defender. That section applies to habeas corpus proceedings by implication, as it refers to the appointment of assigned counsel for indigents “in a criminal trial, proceeding or appeal.” A hearing on a petition for a writ of habeas corpus is a proceeding within that provision of the Penal Code. Furthermore, Government Code section 27706, subdivision (a) requires that the public defender must upon request represent any indigent “who is charged with the commission of any contempt or offense triable in the superior, municipal or justice courts at all stages of the proceedings.” The habeas corpus hearing is necessarily a proceeding relating to the commission of an offense within the courts listed.

Our inclusion of the habeas corpus hearing within those proceedings in which an indigent criminal defendant is entitled to appointed counsel is supported by the recent opinion in Polakovic v. Superior Court (1972) 28 Cal.App.3d 69 [ 104 Cal.Rptr. 383 ], wherein the court held that Penal Code section 987.2 encompassed the requirement of the payment of attorney’s fees for appointed counsel for pursuing writs of prohibition and mandate relative to Penal Code sections 999a and 1538.5 proceedings, determining that in filing for extraordinary writs the attorney was representing the defendant in a “criminal trial, proceeding or appeal” (at p. 72).

Now we turn to the issue of what counsel the court must appoint for indigent criminal defendants. Section 987.2 provides for the assignment of counsel in such proceedings in a “county in which there is no

Harris v. Superior Court (1977) 19 Cal.3d 786 [ 140 Cal.Rptr. 318 , 567 P.2d 750 ], is of no assistance to petitioner. Harris required that the trial court consider the defendant’s choice and various objective factors in appointing private counsel where the public defender is not available. Here, the public defender was available; therefore, Harris is inapplicable. In People v. Massie (1967) 66 Cal.2d 899 , 910 [ 59 Cal.Rptr. 733 , 428 P.2d 869 ], the court rejected a defendant’s contention that he was entitled to the appointment of private counsel when the public defender was available to represent him. (See also People v. Hughes (1961) 57 Cal.2d 89 [ 17 Cal.Rptr. 617 , 367 P.2d 33 ].)

Petitioner’s reliance on Smith v. Superior Court (1968) 68 Cal.2d 547 [ 68 Cal.Rptr. 1 , 440 P.2d 65 ], is misplaced. In Smith the court held that an attorney already appointed by the court and receiving public compensation should have been allowed to continue to represent the client on remand after appeal. Here, Mr. Korn had not been appointed and compensated by the court. Mr. Korn has been privately retained counsel throughout these proceedings. Furthermore, Smith involved a situation in which the public defender was unavailable because of a conflict of interest. For this reason, Smith, like Harris, is inapposite.

We conclude that in habeas corpus proceedings in which an indigent petitioner is entitled to and desires appointed counsel, the court is required to appoint the public defender if there is one, provided the public defender does not have a conflict of interest or cannot represent the petitioner for other good cause.

The alternative writ of mandate is discharged. Petition for writ of mandamus and prohibition is denied.

Feinberg, J., and Halvonik, J., concurred.

Petitioner’s application for a hearing by the Supreme Court was denied August 1, 1979. Bird, C. J., was of the opinion that the application should be granted.